A Dirty Business

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By Vernon Loeb

July 25, 1999

For a man on vacation, Bill Clinton looked somber and drained. "Good afternoon," the president said, peering into a bank of television cameras. "Today I ordered our armed forces to strike at terrorist-related facilities in Afghanistan and Sudan because of the threat they present to our national security."

So the world first learned, one August afternoon almost a year ago, that the United States had attacked the El Shifa Pharmaceutical plant in Khartoum, Sudan. Clinton interrupted his summer vacation on Martha's Vineyard to make the dramatic announcement, just two weeks after terrorist bombs had devastated two U.S. embassies in East Africa.

Hours earlier, 66 Tomahawk cruise missiles had wiped out training camps in the Afghan mountains and 13 demolished what the president described as "a chemical-weapons-related facility in Sudan." Both targets, the president said, were linked to terrorist financier Osama bin Laden, believed to have masterminded the embassy attacks.

"Today we have struck back," the president said.

Within a matter of days, however, Clinton's missile attack on El Shifa would explode anew as evidence mounted indicating that the facility was making pain medication, not nerve gas. A growing chorus of critics around the world seemed unconvinced by the administration's "compelling" evidence: a soil sample secretly obtained by a CIA agent near the plant said to contain a known precursor chemical to deadly VX nerve gas.

"Never before," former CIA official Milt Bearden would say months later, "has a single soil sample prompted an act of war against a sovereign state."

A world away, Salah Idris, a Saudi magnate who had purchased El Shifa just five months before the attack, remembers thinking there had been some terrible mistake. As problematic as the episode would soon become for the Clinton administration, it was a full-blown catastrophe for Idris--and losing a $30 million factory was just the half of it.

"He went to bed a major businessman--a millionaire hundreds of times over--and woke up a major terrorist," said his attorney, George R. Salem, a partner at the powerhouse Washington law firm of Akin, Gump, Strauss, Hauer & Feld. "He figured all the administration needed to be told was--'This is Salah Idris, a prominent Saudi businessman who owns the plant. You've made a serious mistake. Let's deal with this quietly.' But it became immediately clear that wasn't going to happen."

So Idris decided to fight back against the most powerful nation on Earth--Washington-style. He took out his checkbook and hired himself a $3 million dream team of former U.S. officials, chemists, environmental engineers and public relations men, including a former special assistant to Attorney General Robert Kennedy, the CIA's former London station chief and a spin doctor best known for his work on behalf of CBS and Mike Wallace during the celebrated libel trial filed by retired Gen. William Westmoreland.

Beyond the obvious international implications of firing volleys of cruise missiles at impoverished Third World nations, this is a story about how one very rich man maneuvered the Clinton administration into federal court and watched it fold without a fight, even as senior officials continued to defend the attack against all criticism. And the battle may not be over.

Both the House and Senate intelligence committees are still probing the missile strike. And the dream team is itching to get into court one more time, having drafted a second suit aimed at fully compensating Idris for the loss of his pharmaceutical factory, and the loss of his name.

Back in Washington, shortly after Clinton announced the attack, a reporter at the Pentagon asked Defense Secretary William Cohen a question he was undoubtedly dreading:

"Some Americans are going to say this bears a striking resemblance to 'Wag the Dog.' Have you seen the movie?"

The film was about a president--caught in a sex scandal with a young girl in the White House--who declares a phony war on Albania to divert the nation's attention, which gave the film a certain currency. Just three days before the missile strikes, Clinton had met with prosecutors to answer questions about his extramarital affair with Monica S. Lewinsky and then addressed the nation about the relationship.

Cohen was stone-faced. "The only motivation driving this action today was our absolute obligation to protect the American people from terrorist activities," he said.

Asked about El Shifa, Cohen spoke with certitude. "What we do know is the facility that was targeted in Khartoum produced the precursor chemicals that would allow the production . . . of VX nerve agent." He expressed no doubt about El Shifa's links to bin Laden. "We do know that he has had some financial interest in contributing to this particular facility."

A senior intelligence official soon followed Cohen to the lectern and had more to say about El Shifa and its links to bin Laden. "First, we know that bin Laden has made financial contributions to the Sudanese military-industrial complex. That's a distinct entity of which, we believe, the Shifa pharmaceutical facility is part. We know with high confidence that Shifa produces a precursor that is unique to the production of VX."

He added: "We have no evidence--or have seen no products, commercial products that are sold out of this facility. The facility also has a secured perimeter, and it's patrolled by the Sudanese military. It's an unusual pharmaceutical facility."

Over at the White House, Clinton's national security adviser, Samuel R. "Sandy" Berger, was referring to the "so-called pharmaceutical factory in Khartoum, which we know with great certainty produces essentially the penultimate chemical to manufacture VX nerve gas."

U.S. officials did not know at the time--by their own subsequent admissions--who owned the plant. They literally did not know whom they were dealing with.

Idris, in London at the time of the bombing, thought at first that his factory had been accidentally destroyed during an American attack on Khartoum. But soon, watching Clinton address the nation on CNN, he realized the attack was no accident.

"When the president was addressing the nation, it was a very difficult time for me," Idris later recalled in an interview. "I had only owned this plant for five months. I was shaken for some time."

Idris said his first instinct was to come forward and tell the U.S. government that he owned the plant, wasn't a terrorist and wasn't making nerve gas. "I kept making every personal assurance of my personal readiness to come to the States at any time, to make myself available, to answer any personal concerns they might have."

But the Clinton administration was unmoved. The Treasury Department responded to his entreaties by sending a simple one-page order to the Bank of America four days after the missile strike freezing $24 million of Idris's assets on deposit in accounts in the United Kingdom, "pending investigations of interests of Specially Designated Terrorists"--bin Laden and his presumed associates.

Idris hardly fit the profile of a terrorist. The son of a tailor from a town in the north of Sudan, Idris, 47, graduated from the University of Cairo's Khartoum branch, moved to Saudi Arabia in 1976 and started working as an accountant at the National Commercial Bank, where he became a protege of the bank's proprietor and chief executive officer, Sheikh Khalid bin Mahfouz. The Mahfouzes are a well-known business family in Jiddah and, through the NCB, have banking connections to the Saudi royal family, staunch U.S. allies who expelled bin Laden in the first place.

Idris formed his own small export firm in 1983 and became ever closer to bin Mahfouz. When his mentor became embroiled in the Bank of Credit and Commerce International (BCCI) banking scandal in the early 1990s, Idris handled bin Mahfouz's personal affairs and basically ran the bank. When bin Mahfouz resumed his duties, he made Idris the bank's manager of international accounts.

By the time Idris left the bank in 1998 and purchased El Shifa, he was a very rich man--with a lot to lose. Immediately after the missile attack, he called a prominent Saudi journalist and businessman, Othman Al-Omair, at OR Media Ltd. in London. Al-Omair happened to be meeting at the time with George Salem of Akin, Gump. Both had known and worked with Idris for years. "He came to us and said, 'Please help me.' That was the essence of it," recalled Salem, a Palestinian American who had served as solicitor of labor from 1985 to 1989, during the Reagan administration.

Soon, Salem had John Scanlon, managing director of crisis communication at DSFX International in New York, drafting Idris's declaration of innocence for release to the media worldwide. Best known for his spin-doctor work for CBS and Mike Wallace during the Westmoreland trial, Scanlon detected an "aura of cynicism" among his reporter friends, a willingness to believe Idris and disbelieve the White House.

"The bombing took place on August 20, three days after the president's grand jury testimony," Scanlon recalled. "And it was clear at the outset that administration officials had all the facts wrong."

In Khartoum, a day after the attack, Sudanese President Lt. Gen. Omar Hassan Bashir mounted a podium in Martyr's Square adorned with pictures of Clinton and Lewinsky. "Screw Monica, Not Sudan," read a banner draped across the stage.

"This is a wicked president," Bashir told a crowd of 10,000. "This president lied to the whole world and to his people," Bashir said, "and he is still lying."

He and other Sudanese officials realized immediately that Clinton's bombing of El Shifa gave their scorned government a rare moment in the sun. They wasted little time challenging every claim coming out of Washington about the plant, its purpose, its ownership. El Shifa, they said, wasn't heavily guarded, and it clearly did make an array of pharmaceuticals.

Indeed, the United Nations approved a contract eight months prior to the attack for the purchase of veterinary pharmaceuticals from El Shifa.

In the face of these assertions, Berger revealed three days after the attack that the administration had "physical evidence" that the plant had produced a nerve gas precursor. But he said he couldn't reveal the evidence without compromising intelligence sources.

The following day, with a parade of Western journalists trooping through the bombed-out ruins of El Shifa and a stream of television footage showing piles of dark brown ibuprofen bottles in the rubble, a senior U.S. intelligence official did what Berger had ruled out only the day before and revealed the evidence: a soil sample scooped up by a CIA asset containing a chemical, EMPTA, that was used only in the production of VX.

Its presence, the official said, led U.S. intelligence officials to the "unambiguous conclusion" that El Shifa had been used to make a chemical involved in nerve gas production.

But questions continued to mount as an American consultant, a British engineer and an Italian pharmaceutical executive who'd been intimately involved with aspects of the plant all stepped forward and said there was no way it was making a nerve gas precursor.

Their comments soon prompted the CIA to take a shot at stemming the tide, revealing that it had obtained the soil sample from a "vetted and polygraphed" intelligence agent from another country in the Middle East as part of a lengthy covert operation that had discerned ties between El Shifa and Iraq.

"We see a connection with this plant and the Iraqis--that draws our attention to it," one senior intelligence official explained. "We go and sample--and we get a hit on the most powerful precursor, EMPTA, for VX that we can identify. That's the web."

In any intelligence situation, the official said, "you're always dealing with a mixture of evidence and inference . . . and we think in this case, as you add it all up, it's a very strong case."

At Akin, Gump's well-appointed offices just off Dupont Circle, Salem and his partners were hard at work picking holes in the government's case. They mixed evidence and inference and reached the opposite conclusion. But representing a client who is presumed guilty is not an easy thing to do.

"We decided very quickly that we had to establish in a way that was provable in court that, number one, the man was clean, and number two, the plant was clean," Salem recalled.

Conducting daily conference calls with Idris and his other advisers in London, Khartoum and Jiddah, Salem peered out the picture window of a prestigious corner office once occupied by Vernon Jordan, senior partner and close friend of the president, overlooking the garden of the Historical Society of Washington.

By late August, Salem had been joined on Idris's defense team by three other Akin, Gump partners. William G. Hundley, a defense lawyer in white-collar criminal cases and firm legend who made his name as special assistant to Attorney General Robert F. Kennedy, headed the team. He was then in the news for representing Jordan in the Lewinsky case before special prosecutor Kenneth Starr's grand jury.

Joining him and Salem were Mark J. MacDougall, a litigator who had previously worked as a Justice Department bank fraud prosecutor, and Steven R. Ross, a lawyer-lobbyist who had served as general counsel to the House of Representatives from 1983 to 1993.

To fully investigate their own client's background, the lawyers quickly hired E. Norbert Garrett, a former CIA station chief in Kuwait, Cairo and London now working in the London office of Kroll Associates, a leading private-eye firm. All the team lacked was a chemist who could oversee the collection of a whole new set of soil samples from the wrecked plant site in Khartoum as part of an exercise to refute--or confirm, if worse came to worst--the CIA's sample. In early September, MacDougall chose Thomas D. Tullius, chemistry department chairman at Boston University and one of the few experts he could find who didn't have some kind of government contract related to chemical weapons research.

In the back of everyone's mind at Akin, Gump were two troubling possibilities that had to be ruled out: (1) Idris might have had some inadvertent connection to bin Laden; (2) he might have purchased the plant from a nerve gas manufacturer without even knowing it.

"Had our tests come back with EMPTA in the soil, we all would have looked a little foolish pushing this case," MacDougall said. Had the firm not been able to refute the CIA's soil sample, he said, it would have had real difficulty proceeding against the government in court.

Tullius dispatched a British environmental engineer in October to take a set of samples from the El Shifa site and instructed him to document a precise "chain of custody" that would enable the defense to show later in court exactly who had access to the samples.

The engineer gathered samples, not only from the soil around the plant but also from laboratory areas inside the plant that remained covered by the plant's mangled roof. He also found the plant's "soak-away," a collection tank through which all drainage from the plant's laboratory areas passed.

The results came back in early January from two leading European laboratories, including TNO Prins Maurits in the Hague, one of the top dozen labs in the world for chemical weapons testing. All were negative. Using the two most advanced techniques in the world, neither laboratory found EMPTA in any of the samples. To guard against the possibility that EMPTA could have broken down into another compound in the soil, a scientist at TNO Prins Maurits injected EMPTA into a sample of soil from the plant. He discovered that EMPTA broke down very rapidly in soil from the El Shifa plant into a substance called EMPA--a substance that could then be expected to remain present in the soil for years.

So TNO then tested all the samples again for the presence of EMPA. None was found. The Prins Maurits scientist also injected EMPTA into a sample of sludge from the plant's soak-away but found that it did not break down in this environment. Tullius said he considered this the key sample--a time capsule of everything that went on in the plant.

Tullius concedes that all of his testing doesn't necessarily prove that the CIA couldn't have found EMPTA in the soil outside the plant. That would be virtually impossible to prove. "Somebody can always say, 'We dug in the right place and you didn't,' " he said.

What Tullius is prepared to testify to in court, however, is that one of the best laboratories in the world failed to turn up EMPTA or EMPA in any of the samples in minute traces measured in 10 parts per billion.

"We tried to find it, we did the extra studies and didn't just stop at EMPTA," Tullius said. "There was no EMPTA or EMPA in any of our samples."

The investigators at Kroll in London completed their work at just about the same time, sending Akin, Gump a 318-page investigative report on Idris's background. The report disputed, in painstaking detail, every substantive point made by U.S. officials against Idris and the El Shifa plant.

Garrett, having led a Kroll team that interviewed five dozen individuals in Sudan, Jordan, Egypt and the United Arab Emirates, found no evidence linking Idris to bin Laden or any other terrorist in any way--and lots of evidence to the contrary. Idris told them he'd never met bin Laden. "We had to review that claim," Garrett said. "And it held up."

Kroll concluded that El Shifa was a legitimate pharmaceutical plant designed to repackage imported pharmaceutical products and could not possibly have manufactured any chemical, let alone EMPTA or VX nerve gas. Kroll found no ties between the plant and either the Iraqis or the Sudanese military industrial complex and determined that the complex was lightly guarded by unarmed men dressed in overalls.

A senior U.S. official scoffed at Kroll's findings. "It's hardly a surprise that an investigation sponsored by Idris would conclude that he is not linked to Sudan's chemical weapons program or to Osama bin Laden's terrorist network," the official said.

But the Kroll investigation of Idris's background does not read like a whitewash. Garrett concluded that Idris did not research El Shifa thoroughly before purchasing the plant for $30 million. He also noted the possibility that a prior investor in the plant may have had commercial ties to bin Laden.

His most troubling conclusion, however, involved Idris's apparent connections to Sudan's dominant political power, the National Islamic Front, and its leader, Hassan Turabi, a man who reportedly had close ties to bin Laden when the terrorist lived in Khartoum in the early 1990s.

Garrett quoted numerous Western and Arab sources as saying that Idris would not have been able to establish a business empire in Sudan without some type of close working relationship with the NIF. He also quoted sources as saying that Idris and his entourage enjoy unprecedented freedom in traveling in and out of the country.

But the evidence, they conclude, is inconclusive. Idris himself denies ever having made a payoff to anyone in the NIF, and other sources told Kroll investigators that Idris's wealth and position as a dominant investor in the country were enough to afford him the privileges he enjoys.

By late January, still hoping to negotiate some kind of settlement with the Clinton administration, Hundley and MacDougall invited representatives from the Justice Department, the Treasury Department, the CIA and the House and Senate intelligence committees to a presentation at Akin, Gump's offices.

Garrett flew in from London, and Tullius came down from Boston with his PowerPoint slide presentation, eager to show those assembled precisely where he had gathered soil samples, using an architect's model of the El Shifa plant. But only a couple of staffers from the House committee showed up.

Out of options, Akin, Gump filed suit on Idris's behalf three weeks later, alleging that the Treasury Department had frozen $24 million of Idris's assets in the United Kingdom without designating him a terrorist or formally declaring that he is linked to a designated terrorist, as the law demands.

With his lawyers hard at work drafting a second suit demanding $30 million in compensation for the plant, Idris had chosen a conservative, incremental approach by initially focusing only on his frozen assets. But even his narrowly drawn suit had the effect of daring the government to back up its claims and formally declare him a terrorist.

The suit was pending when PBS's "Frontline" aired a documentary in April about the August missile strikes. Interviewed on camera, national security adviser Berger backed off substantially from earlier claims that the plant was "producing" a precursor to VX nerve gas.

"I don't think that--I think that is not necessarily the case," Berger told "Frontline." "I think it is certainly true that the plant was associated with chemical weapons."

Three weeks later, on the day in early May when the government's response to Idris's lawsuit was due to be filed, MacDougall got a call from a Justice Department attorney. MacDougall agreed to meet the attorney in his office, figuring the government would either ask for an extension or name Idris as a "specially designated terrorist."

Instead the government lawyer told MacDougall matter-of-factly that Treasury had just filed an order unfreezing Idris's assets. " 'I think the case is now moot,' " MacDougall remembers the lawyer saying.

"I think you're right," MacDougall replied.

Just like that, Salah Idris had taken a giant step toward reclaiming his reputation. But there would be no letter of exoneration from Uncle Sam, no apology from the White House. Asked later in the day whether the government's move finally cleared Idris's name, a White House spokesman said absolutely not. Stopping well short of linking him to bin Laden, the spokesman said nonetheless that the administration continued to have "concerns" about Idris, based on his business dealings in Sudan with "reprehensible" partners.

"Our concerns regarding Mr. Idris are based on sensitive intelligence sources and methods," the official said. "We're not prepared to expose these sources for the purpose of blocking Idris's money."

Lawsuit in hand, Akin, Gump waits for Idris to pull the trigger. But Hundley understands why his client is taking his time. "MacDougall and I are certainly prepared to try this case, but I can't give Idris any assurances that we're going to win. I just can't," Hundley said. "I recognize that there are real legal problems, particularly when the government hides behind this national security screen. And he doesn't want to be viewed as anti-American."

The wheels of justice grind slowly, meanwhile, up on Capitol Hill. Rep. Porter J. Goss (R-Fla.), chairman of the House Intelligence Committee and a former CIA case officer, said he has yet to discover what went on inside the Clinton administration in terms of selecting El Shifa as a target--but he intends to find out.

Goss said he recently sent out a reminder to those involved that he has no intention of letting the matter drop. The next time a president contemplates firing cruise missiles at terrorists, Goss said, the government needs to have a clear system of accountability in place.

Was El Shifa a legitimate target?

"I'm not sure that I know enough about the certification of the target to make any kind of judgment on that yet," he said.

Sen. Richard C. Shelby (R-Ala.), chairman of the Senate Intelligence Committee, said that he, too, has two basic unanswered questions about the attack on El Shifa that he intends to have answered:

Did intelligence officials have any role in recommending El Shifa as a target?

Did policymakers in the Clinton administration have sufficient evidence to warrant a missile attack on a sovereign nation?

Given all that's transpired over the past 11 months, Shelby said he's troubled by the fact that Idris has challenged the administration's missile attack--and that the administration hasn't been able to sufficiently respond.

What is to be made, in the end, of the CIA's claim that a soil sample gathered near the plant contained EMPTA, in the face of the extensive negative results obtained by one of the most respected labs in the world?

"The strike at El Shifa was consistent with our national security responsibility to protect American lives worldwide," said David C. Leavy, a spokesman for the National Security Council. "We fully stand behind it. We had solid evidence that there was chemical-weapons-related activity going on at El Shifa."

The evidence, Leavy explained, included the soil sample containing EMPTA and a string of associations linking bin Laden's chemical weapons aspirations to those of the Sudanese regime.

Asked whether the government still believes Idris is a terrorist linked to bin Laden, Leavy cited the possibility of further litigation and said: "I'd rather not comment on that."

But Michael Barletta, a senior research associate at the Monterey Institute of International Studies, concluded in a recent paper on the El Shifa attack that the CIA's soil sample is hardly a "smoking gun," since the agency failed to follow the most basic testing protocols, including use of multiple labs to guard against false positives.

Barletta also concluded that the CIA has never adequately explained "the physical path or process by which U.S. officials believe EMPTA would have been dispersed outside the plant." EMPTA isn't volatile enough to travel in vapor form, he wrote, and there's no plausible reason why a plant drainage system would deposit EMPTA in the dirt so close to the facility.

More likely, according to Barletta, is that someone dumped a quantity of EMPTA directly into the soil to trump up evidence. But that possibility is problematic as well, he said, since a deliberate spill would have produced a much higher level of EMPTA than the CIA found.

In the end, Barletta concluded, El Shifa "may have been involved in some way in producing or storing the chemical compound EMPTA, which can be used in the production of VX nerve gas. However . . . the evidence available to date indicates that it is more probable that the Shifa plant had no role whatsoever in chemical weapons production."

Patrick Eddington, a former CIA photo analyst, said he has reviewed satellite imagery of the plant before and after the strike released by the Pentagon and found no indications whatsoever of military fortifications typical of chemical weapons installations. His opinion: El Shifa was a pharmaceutical plant.

Milt Bearden, the former CIA station chief in Sudan and a leading critic of the El Shifa attack, is far more blunt. "It doesn't take Barry Scheck to call the science into question," he said, referring to O.J. Simpson's expert in legal forensics.

And the fact that the agent who obtained the dirt reportedly came from Egypt, Bearden said, also raises a red flag, given Egypt's antipathy toward Sudan, a possible motive for providing false evidence. But the real failure here, Bearden maintains, lies with the White House for targeting the plant, not with the CIA and its "handful of dirt."

Bearden believes the CIA never recommended targeting El Shifa, a decision he attributes to policymakers at the White House and Pentagon.